With the passage of New York City Administrative Code § 7-210, which applies to all accidents arising out of sidewalk defects that occur on or after September 14, 2003 (see Rodriguez v City of New York, 12 AD3d 282 [2004]), the City Council dramatically changed tort liability for sidewalk accidents. Aside from exceptions inapplicable here, the new law shifts liability for sidewalk accidents from the City of New York (City) to the abutting landowner. The question presented here is [*2]whether the abutting landowner may be held liable under section 7-210 where the defective condition is a broken City signpost. For the reasons that follow, I conclude that section 7-210 does not shift liability under such circumstances.

In this action, plaintiff alleges that she was injured on December 1, 2003 when she tripped and fell over the remainder of a metal signpost protruding from the sidewalk. Alltom Properties, Inc. (Alltom) is the owner of the building abutting the sidewalk, and PJ's Perfume Depot, Inc. (PJ) leases a street-level store in this building.

There is no genuine dispute that the metal protruding from the sidewalk is the remains of a City signpost. In fact, after plaintiff's accident it appears that the City fixed it. Notwithstanding this, the City asserts that Alltom may be held liable for plaintiff's accident in light of Administrative Code § 7-210.

Section 7-210 provides in relevant part that "[i]t shall be the duty of the owner of real property abutting any sidewalk ... to maintain such sidewalk in a reasonably safe condition" (Administrative Code § 7-210[a]). The Code further provides that "the city shall not be liable for any injury ... proximately caused by the failure to maintain sidewalks ... in a reasonably safe condition" and shifts such liability to the abutting landowner (Administrative Code § 7-210[b]).^[FN1] While on its face the Code appears to effect a wholesale transfer of all liability for sidewalk accidents to the abutting landowner, closer scrutiny reveals otherwise.

Under the common law, the duty to maintain sidewalks rests with the municipality (see City of Rochester v Campbell, 123 NY 405, 411 [1890]; Pardi v Barone, 257 AD2d 42, 44 [1999]). In addition, liability for dangerous or defective conditions on public sidewalks generally rests on the municipality, not the abutting landowner (Hausser v Giunta, 88 NY2d 449, 452-453 [1996]).^[FN2] Indeed, even where a statute requires an abutting landowner to maintain the sidewalk, this, without more, does not render the abutting landowner liable for accidents resulting from sidewalk defects(see Roark v Hunting, 24 NY2d 470, 475 [1960]; [*3]City of Rochester, 123 NY at 414-415).^[FN3]

On the other hand, a municipality may shift liability to the landowner where the statute not only imposes a duty to maintain on the abutting landowner, but also expressly renders the landowner liable for a breach of that duty (see Hausser, 88 NY2d at 453; Willis v Parker, 225 NY 159, 165-166 [1919]; Pardi, 257 AD2d at 44-45; Karom v Altarac, 3 AD2d 925 [1957], lv denied 4 AD2d 745 [1957]). Section 7-210 fulfills this requirement. However, given that the imposition of liability on abutting landowners is in derogation of common law, the provision must be strictly construed against the City (see Almadotter v City of New York, 15 AD3d 426, 427 [2d Dept, 2005]; cf. Pardi, 257 AD2d at 45 [3rd Dept]). It is viewed against this backdrop that the scope of section 7-210 must be analyzed.

Initially it should be observed that the signpost itself is City property situated on a City sidewalk. Further, New York City Charter § 2903(a)(2) requires the commissioner of the City's Department of Transportation to, among other things, "control, install and maintain . . . any and all signs, signals, marking, and similar devices . . . for guiding, directing or otherwise regulating and controlling vehicular and pedestrian traffic in the streets." Hence, if the intent of section 7-210 was to transfer the responsibility of maintaining the signpost it would have to had to do so in clear and unmistakable language. This it did not do. This conclusion is particularly supported by examination of the legislative history leading to the enactment of 7-210.

In a report prepared by the New York City Council's Committee on Transportation prior to the enactment of 7-210, it was observed that section 19-152 of the Administrative Code already required landowners to maintain the abutting sidewalk. However, because that section did not explicitly impose liability upon the landowner for a breach of that duty, it was recommended that the administrative code be amended and that 7-210 be added. Hence, 7-210 was the liability creating counterpart to the maintenance obligations of section 19-152. Section 19-152 therefore serves as the guidepost for determining the scope of a landowner's duty of maintenance.

In greater detail, section 19-152 provides that the [*4]Commissioner of Transportation shall order the landowner to fix the sidewalk only if there is a substantial defect. It then lists nine categories of substantial defects. All of the categories listed, except one, involve tripping hazards pertaining to sidewalk flags being out of level, broken or loose. The only category that involves protrusions from the sidewalk, which is what is involved in this action, is found in section 19-152(a)(6).

In defining this category of defect, section 19-152(a)(6) provides:

[H]ardware defects which shall mean (i) hardware or other appurtenances not flush within ½ inch of the sidewalk surface or (ii) cellar doors that deflect greater than one inch when walked on, are not skid resistant or are otherwise in a dangerous or unsafe condition.

Thus, if the landowner is to be held responsible for the City's signpost, the signpost must be viewed as being "hardware" or an "appurtenance." Section 19-152(a)(6) does not itself give a clear indication of what falls within these categories. However, a related section of the administrative code, section 19-147(d), does shed some light on this.

Section 19-147(d), entitled, "Maintenance of street hardware" provides in relevant part that:

[a]ll utility maintenance hole (manhole) covers, castings, and other street hardware shall be maintained flush with the existing surrounding grade.

When juxtaposed with the mention of cellar doors in section 19-152 it is evident that "hardware" and "appurtenances" do not refer to things that, by their very nature, are intended to protrude from the sidewalk. Rather, they refer to that category of street hardware that is meant to be imbedded in the sidewalk and, when properly constructed, is flush with the surrounding sidewalk.

What becomes apparent is that things such as signposts, fire hydrants, and lightposts are intended to protrude from the sidewalk and do not fall within the ambit of section 19-152. The fact that any one of these things can be broken off from their base and cause a tripping hazzard does not thereby cause a metamorphosis to occur, converting the signpost at issue here into street hardware. In fact, common sense itself dictates this result. For instance, if a fire hydrant on the sidewalk was broken off, one could hardly imagine that the abutting landowner has an obligation to remove the stump of the hydrant and cover it up or, for that matter, replace the hydrant at the landowner's expense in order to remedy the tripping hazzard.

I would also note that the relative duties of the City and [*5]abutting landowners here are comparable to their duties with respect to trees located in a sidewalk. The administrative code places responsibility for the cultivation of such trees upon the City (see Administrative Code §§ 18-104, 18-105) and the Rules of the City of New York bar anyone from disturbing or removing such trees without the permission of the Department of Parks and Recreation (34 RCNY § 2-09[f][xx][C]). Hence, while the landowner certainly has an obligation to maintain the sidewalk and tree well leading up to the tree, it has no obligation with regard to the tree itself. By a parity of reasoning, the abutting landowner here may have an obligation to maintain the sidewalk leading up to the signpost, there is, however, no consequent obligation to maintain the signpost itself.

To the extent that the City argues that the abutting landowner has a duty to at least notify the City of the existence of the broken signpost, this argument is likewise without merit. The statutory framework set forth in sections 7-210 and 19-152 only impose a duty to maintain and nowhere impose a duty to notify the City of dangerous conditions. This being so, a duty to notify cannot be implied.

In sum, the signpost at issue here was the City's responsibility, not the responsibility of the abutting landowner. Accordingly, all claims against Alltom (as well as those against JP) must be dismissed.

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J.S.C.